In a recent personal injury claim, the South Dakota Supreme Court clarified the treatment of medical witnesses under South Dakota law. In Weber v. Rains, the plaintiff had his regular medical provider, a physician’s assistant; his chiropractor; and a physician testify as expert witnesses that his injuries from a motor vehicle accident were permanent and would require future medical care. The defendant sought to exclude these testimonies, in part because the medical providers should be treated as lay witnesses and, therefore, could not testify about the permanency of the injuries or the ongoing need for medical care. The Court upheld the trial court’s decision to allow the medical providers to testify as experts. In its reasoning, the Court clarified the South Dakota’s evidentiary rule that previously permitted medical witnesses to be treated as lay witnesses. Under the 2011 amended rule, a “lay witness testimony may ‘[n]ot [be] based on scientific, technical or other specialized knowledge . . . .’” The Court expressed concern that a medical provider could be “proffering an expert in lay witness clothing” by permitting a party to evade the reliability and disclosure requirements of expert witnesses.
Lisa K. Cagle
Lisa K. Cagle is an associate attorney with Gunderson, Palmer, Nelson & Ashmore, LLP in Rapid City, South Dakota. Lisa focuses her practice primarily on business and estate planning, real estate law, and employment law. Prior to practicing law, she worked as a teacher for eight years.